Journal of Criminal Law and Criminology Volume 87 Article 1 Issue 2 Winter Winter 1997 Reckless Complicity Sanford H. Kadish Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Sanford H. Kadish, Reckless Complicity, 87 J. Crim. L. & Criminology 369 (1996-1997) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/96/87020369 THEJOURNAL OF CRIMINA LAW & CRIMINOLOGY Vol. 87, No. 2 Copyright @ 1997 by Northwestern University, School of Law Printed in U.S.A. CRIMINAL LAW RECKLESS COMPLICITY SANFORD H. KADISH* The law of complicity (or accomplices or aiding and abetting, as it is sometimes called) imposes liability on one person ("S" for secon- dary party) for a crime committed by another ("P" for principal party) where S intentionally helps or encourages P to do the action constitut- ing that crime. The law is inescapably complex since it involves two dimensions of interacting mens rea and actus reus problems, those associated with S and those associated with P. I attempted to deal with complicity law generally over a decade ago.' In this paper I revisit one group of issues, namely those arising from the mens rea requirement that S must intend his actions to encourage or help P to commit a particular crime. My earlier study was concerned mainly with why the law of complicity should have taken the form it did. Here I want to take a more critical view of the requirement of intention and ask how far it can withstand critical scrutiny. The puzzle in the requirement of intention is that it stands in contrast with situations where the accountability of an actor for the harmful consequences of his action turns on whether he caused them. In these latter cases, recklessness as to the occurrence of the conse- quences (and sometimes negligence) is enough to make the actor criminally liable-the crime of manslaughter is the commonest exam- ple. Why should it be different where the consequences of a person's action take the form of the criminal actions of another? Can reckless * Morrison Professor of Law, Emeritus, University of California, Berkeley. Aversion of this paper was presented at the Institute of Criminal Law at Tel Aviv University and at the Max-Planck Institute of Foreign and International Criminal Law at the University of Frei- burg. I am grateful to the participants for their many helpful comments as well as to those friends and colleagues who generously read and responded to an earlier draft: Andrew Ashworth, Meir Dan-Cohen, Joshua Dressler, Claire Finkelstein, Christopher Kutz, Mort Kadish, Herbert Morris, Eric Rakowski, Steven Schulhofer and Philip Selznick. 1 Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretationof Doctrine, 73 CAUF. L. REv. 323 (1985). 369 370 SANFORD H. KADISH [Vol. 87 aiding or encouraging the crime of another ever be an acceptable ba- sis for holding S criminally liable? These are the questions I will pur- sue in this paper. The thread of my argument is as follows. Part I argues that three main considerations lie behind the law's general requirement that S's help or encouragement of P's crime be intentional-culpability, the policy of not subjecting lawful practices to excessive risk, and an ethic of individualism and self-determinism. The remainder of the paper considers whether those considerations are incompatible with reck- lessness as an alternative basis of complicity liability. Parts II and III deal with the culpability consideration. Part II describes the one situa- tion where English and American law systematically depart from the requirement of intention and allow negligence or even less to suffice. This occurs in what the English misleadingly call "common purpose" or 'Joint enterprise" cases, where S is already an accomplice of P in some other crime (misleadingly, because the common purpose is to commit some other crime, not the one P commits). I argue that the major defects of this doctrine are that it permits punishment for mere negligence, or even less, and that it provides for the conviction of S for a crime for which S lacks the required culpability or its equivalent. In Part III, I argue that the doctrine of reckless complicity can be made compatible with the requirement of culpability by restricting it to cases where P's crime is one of recklessness or can be committed recklessly. I then consider in Part IV whether the policy of not chil- ling lawful activities precludes the creation of a general reckless com- plicity principle untied to the situation where S is already an accomplice of P in some other crime. I argue that it does not, and therefore conclude that neither the principle of culpability nor policy considerations require rejection of a general doctrine of reckless com- plicity. The final section, Part V, considers the ethic of individualism and self-determinism, and concludes that it does indeed stand against reckless complicity as a general ground of liability, and is the real force behind the law's requirement of intention; and further that this ethic, while deeply ingrained, is normatively problematic. A word about what I am up to in all this. Although I later suggest how the law might be modified to embrace a doctrine of reckless com- plicity, it is no part of my purpose to advocate that this be done. To announce at the outset what I later will want to repeat, I would find unwise any radical extension of the reach of the criminal law in view of the realities of the administration of criminal justice, at least in America. My purpose here is only to try to get at the underlying rea- sons why American and English law, with the exception of the com- mon purpose cases, have insisted on the requirement of intention. 1997] RECKLESS COMPLICITY I. THE REQUIREMENT OF INTENTION I begin with the theory behind the prevailing requirement of in- tendon (sometimes broadly interpreted to include knowledge, as we shall see) and suggest three considerations that seem to lie behind it. The first is culpability, the second the policy of safeguarding lawful conduct from risk, and the third an ethic of individualism and self- determinism. The culpability consideration arises from the need that S satisfy the culpability requirement of P's crime in order that he may be found guilty of it. For example: S reveals the combination of his em- ployer's safe to P, whom he knows to be a career burglar. Say he does so because he is bedridden, and it is therefore convenient for him to have P fetch some records he needed from his employer's safe. But say also that he is fully aware of a substantial risk that it will enable P at any time in the future to open the safe and steal its contents; for him it is worth that risk in order to get the papers. On a later occasion P breaks into the premises, opens the safe and steals cash stored there. P, of course, has the mens rea of burglary-he entered with intent to commit the felony of theft, that is, to appropriate another's property with the intention permanently to deprive the owner of it. Did S have that mens rea? Yes, if S gave P the combination with the intention of helping P commit the burglary. Not precisely, it must be said, since burglary requires that the defendant do the breaking and entering with the required intent, and here S intended P to do so, not to do so himself. But if S helps P with the intention that P should do so S intends to participate in P's burglary and therefore may fairly be re- garded as having a culpability equivalent to that of P. In our hypothet- ical, however, since S only acted recklessly with regard to the risk that P might burglarize the premises he can not be said to have intended to participate in the burglary and therefore did not act with a culpabil- ity equivalent to that of P. In sum, the requirement that S intention- ally help P to commit the crime assures that S acts with a culpability equivalent to that which P's crime requires. The policy concern is that to burden peoples' actions with doubts and worries about what someone else might culpably do as a conse- quence of their own lawful actions would tend to create an undesir- able insecurity in the conduct of ordinary affairs. It is true that the law commonly imposes on people the burden of avoiding unwarranted risks that their conduct will cause harm, at least when they are aware of the danger and the harm eventuates-manslaughter, for example. But it is apparently believed that a burden of avoiding unwarranted risks that their conduct will help or encourage another to commit crime SANFORD H. KADISH [Vol. 87 is distinguishable in nature and degree. 2 Finally, there is the ethic of individualism and self-determinism reflected in traditional criminal law doctrine that except in limited specified circumstances neither what happens to another nor what an- other person does is one's responsibility. I will discuss the relevance of this ethic to the intention requirement in a later section of this paper. II. UNINTENTIONAL COMPLiCITY-AN EXCEPTION Do these three considerations always require that S act intention- ally? Is there ever a case for holding a non-intentional S liable for P's crime? I begin with the one situation where Anglo-American law most clearly dispenses with the requirement of intention and holds S liable for P's crime even though S neither knew nor intended that his con- duct would help or encourage it.